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What Secret Deportation Cases? By: Bill West
FrontPageMagazine.com | Thursday, March 25, 2004


It really all began one sunny May morning in Tampa, Florida in 1997. Three Federal agents, one each from the INS, the FBI and the U.S. Customs Service, teamed up to knock on the apartment door of Mazen Al-Najjar. He answered, and the agents proceeded to serve a duly issued INS Form I-200 Warrant of Arrest in Deportation Proceedings. Al-Najjar was taken into custody without incident that morning, but the arrest would begin a chain of events that would garner international media attention, ibecome an issue in a Presidential election and have ramifications on the nation’s War on Terror.

Why was Al-Najjar’s arrest so significant? Al-Najjar had been identified in the ongoing Palestinian Islamic Jihad (PIJ) investigation in Tampa that began, at least on the criminal side, in late 1994 after the airing of the PBS special Jihad in America. Al-Najjar was an alien who was in the United States illegally, and he had been placed under deportation proceedings before his arrest that day in May but not detained. That was not an unusual practice, since there was pending litigation against him at the Immigration Court level. (His wife, also unlawfully in the U.S., and American citizen kids lived with him in Tampa.) Once the Immigration Court ruled against Al-Najjar (and his wife), and ordered them deported, that changed his status from the perspective of the government. He was, at that point, an alien who had been found deportable by a judge and who had been denied all relief from deportation. Additionally, the government developed no shortage of evidence against Al-Najjar, linking him to the PIJ and other PIJ operatives. Some of that evidence was information the government did not want to reveal then because further investigation was continuing against other suspects, and some of it was classified. 

 

A decision was made to detain Al-Najjar after the deportation order was entered against him by the Immigration Court, and to seek his continued detention, in part, based upon the submission of certain classified information to the Court. This was a rarely utilized process in deportation proceedings. However, it was entirely legal. What some of the government folks underestimated at the time was the extent of the reaction utilizing such a process would have among certain groups.  Individuals and organizations sympathetic to Al-Najjar very quickly picked up the use of “secret evidence” as a cause celebre’, and the circus began.

 

During the late 1990’s, several other deportation cases proceeded around the country wherein the government in the detention portion of those proceedings utilized classified evidence. There were never more than about a dozen such cases at any given time. As in Al-Najjar, those cases were similarly viewed by opponents of the use of “secret evidence” as some draconian encroachment by the government on the civil rights of immigrants. The Al-Najjar case, however, remained in the forefront, and lasted the longest both in terms of litigation and media attention. Indeed, Al-Najjar’s brother-in-law, Sami Al-Arian, a professor at the University of South Florida, seemingly led the effort against the government’s use of secret evidence in Al-Najjar’s deportation case. Al-Arian, of course, now has his own legal problems, as he awaits trial with other defendants on a 50-count federal indictment in Tampa that was issued in February 2003 stemming from the same PIJ investigation.

 

One of the key issues related to these “secret evidence” cases is that almost none of the media ever accurately portrayed them for what they really were. Virtually every media story covering these cases would refer to the suspects as being “held without charges,” or being detained without the ability to “confront the evidence against them.” The media always asserted that such actions only occur in dictatorships and have no place in America’s democracy. The apologists for and supporters of the detainees, including most of their legal representatives, constantly repeated this line; the lawyers of course knew better. At least one media outlet, the Tampa Tribune, particularly reporter Mike Fechter, took a fair and balanced approach on these cases, telling the facts as they were, not selling hype.

 

The truth was that every such person detained faced very specific immigration deportation charges and those charges were never secret or classified and were always adjudicated in open, adversarial court proceedings. The use of classified information, “secret evidence,” in such cases was and is only allowed in very limited circumstances and for very limited adjudicative purposes. Such information can be presented in-camera and ex-parte to an Immigration judge, which means only the judge and the Government attorneys and agents see it, but the information can only be used by the judge for purposes of adjudicating an application for an immigration benefit, such as relief from deportation or release from detention. In these proceedings, such evidence cannot be used as the basis for an actual deportation charge. Even so, the judge, whenever possible, must provide a non-classified summary to the alien and defense attorneys. Those “secret evidence” cases dealt with these issues, primarily custody issues, of illegal alien suspects who were already formally and openly charged with other deportation violations. And, these were suspects where the classified evidence in some way would have indicated the suspects had links to or involvement with terrorism or some other national security threat. 

 

These cases materialized in the late 1990s and into 2000. Again, they never numbered more than a dozen or so nationwide, yet the hue and cry among opponents was significant. The Doris Meissner Immigration and Naturalization Service (INS) and the Janet Reno Department of Justice (DOJ) made no substantial efforts to counter the public misconceptions about these cases, even as they allowed them to work their way through the legal system. 

 

Interestingly, a provision of the “Anti-Terrorism and Effective Death Penalty Act of 1996” created something called Title V of the Immigration and Nationality Act. This created the Alien Terrorist Removal Court (ATRC), a very specialized Federal Court comprised of U.S. District Court Judges selected by the Chief Justice of the United States who would hear deportation cases against alien terrorist suspects who (a) are not otherwise subject to regular deportation proceedings and (b) the evidence relating to the underlying deportation charge is classified. The ATRC changed everything and allowed for the use of secret evidence, under very specialized, limited and highly controlled circumstances, directly against alien terror suspects in their deportation cases. The Alien Terrorist Removal Court has been in existence since the late 1990s, but not one case has been  brought before it.

 

Al-Najjar remained detained for three-and-a-half years, the first time around. While the facts were that Al-Najjar was found by the Immigration Court to be a security threat, based in part on the classified evidence that had been presented, he remained detained while he appealed his deportation order. Of course, his supporters continually portrayed him in the media and as a political prisoner. In effect, Al-Najjar held the key to his own cell. Had he simply dropped his appeal, and accepted deportation, he would have been a free man, just free in a country other than the United States. Eventually, Al-Najjar’s substantial legal team got the attention of a U.S. District Court Judge in Miami in a habeas corpus proceeding. Judge Joan Lenard issued an odd ruling requiring the Immigration Court to hold another custody hearing in Al-Najjar’s case, with essentially more “due process” given to the classified evidence process, if that process was deemed possible. Strangely, her Honor Judge Lenard rendered her decision without even reviewing the original underlying classified evidence.

 

The habeas decision, without a “stay” action sought by the Reno DOJ (another odd event), set the stage for a two-week immigration custody hearing in Bradenton, Florida, in October 2000. Such hearings normally last no more than 20 minutes, yet this proceeding turned into something more drawn out and complex than most criminal trials, and it happened right before the 2000 Presidential elections. Ironically, it was in the middle of this extended hearing that then-candidate George W. Bush made a public statement expressing his concern over the use of “secret evidence” in immigration cases. More ironically, that statement came on the heels of a meeting he had with Sami Al-Arian.

 

The Al-Najjar re-hearing was full of oddities. Defense attorneys held daily press conferences outside the court while the Reno DOJ essentially muzzled the prosecution side. There were strong indications that a senior DOJ adviser on Reno’s staff was in direct contact with one of Al-Najjar’s defense attorneys during the time the hearing was being conducted. The same Immigration Judge, after reviewing the same classified evidence he had reviewed in 1997 plus two weeks of other evidence, instead of rendering the same decision he rendered in 1997, issued a lengthy, convoluted decision releasing Al-Najjar on an $8,000 bond. The winds of political correctness had blown very hard.

 

Janet Reno, to her temporary credit, stayed the Immigration Judge’s order, as she legally could, until December 2000. Note, that was after the election. She then allowed the Immigration Judge’s decision to stand, without appeal, and Al-Najjar was released on the $8,000 bond. The Attorney General who, for three-and-a-half years had known fully well who and what Mazen Al-Najjar was -- even more so than the Immigration Judge, since she had been fully briefed on the Tampa PIJ case parameters -- decided to let the guy walk. Of course, she was about to walk herself, since her boss was out of a job.

 

The Al-Najjar case and the several others caused so much angst for the Department of Justice and the INS, that a review and analysis system was put into place for triaging potential cases that essentially made it impossible to get any such case approved. That process was implemented circa 2000 and allegedly remains in place currently. Sources indicate that, even since the 9-11 attacks, there have been no new classified evidence cases initiated. 

 

These cases should not be confused with the other hue and cry of the terror apologists and  misguided do-gooders, what they call “secret detention” cases. Since the 9-11 attacks, many hundreds of illegal aliens, mostly from terrorist countries, have been arrested, detained or deported. Those people have not faced classified evidence proceedings. They, in fact, have been formally and openly charged with regular deportation violations. The proceedings themselves have in some cases been closed to the public. Additionally, in some of those cases, the Immigration Courts have issued “protective orders” in the proceedings. These are essentially gag orders in deportation cases and require the illegal alien and his defense attorneys to remain silent about the proceedings. In any event, the aliens and their lawyers have an opportunity to challenge the evidence in adversarial proceedings. Much to the chagrin of the apologists, a recent Supreme Court decision has determined it is OK for the government to use these techniques.

 

The genuine classified evidence process, which deals strictly with issues related to an alien’s application for benefits such as relief from deportation or release from custody, or the full Alien Terrorist Removal Court, are potentially powerful tools at the disposal of the federal government in the ongoing war on terror. Neither of these procedures has been legally rescinded and remains fully viable within the statutes and regulations under the Immigration and Nationality Act. The government appears to be gun-shy when it comes to these procedures. The perceived negative legacy of the Al-Najjar and several other cases, all before the 9-11 attacks, still looms large. That is a false legacy. There was never anything draconian or evil in the process of those cases. There was notable misconception and misunderstanding of the process, deliberate or otherwise.

 

Perhaps the feds should look at using these “secret evidence” proceedings more often. They actually work. Take, if you will, Mr. Al-Najjar. After losing his deportation appeal before the 11th Federal Circuit Court of Appeals in November 2001, he was re-arrested by INS and detained without bond until he was finally deported to Lebanon in 2002, more than five years after that sunny day in May when those agents knocked on his door.


Bill West is a retired INS/ICE Supervisory Special Agent who ran organized crime and national security investigations. He is now a counter-terrorism consultant and freelance writer.


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